Some Thoughts on DC Corruption
posted by Marvin Ammori
I’d like to thank the good folks at Concurring Opinions for inviting me to guest blog. The CoOp team has always been tremendously generous to me over the years–advising me on the teaching market (Dan, Frank), reading and commenting on draft law review articles (Dan), and reposting some of my thoughts (Danielle). And they’ve been kind enough to let me guest-blog for two months, as I was working through a law review article (grandly titled First Amendment Architecture–someone please publish it).
I tend to write about free speech and technology–like policies to ensure net neutrality, Internet access for all, or online innovation without permission. I am interested in media and the Internet because they are among our dominant means of speech, and speech is a basic input into all the decisions of our democracy. To the extent we design our speech systems more or less democratically, that affects all our policy decisions. I spent a few years in DC, working on media reform and network neutrality, among other issues.
I will write about technology soon. Today: corruption.
Almost all of us interested in these tech & speech issues are also interested in electoral/corruption issues. Some examples are Larry Lessig (world’s cyberlaw pioneer, now heading a project on corruption) and Josh Silver (former head of Free Press, a leading Internet policy group, once my client, who now heads a foundation addressing lobbyists’ influence).
We think about electoral/corruption issue, I believe, because influence in elections also affects all other policies. In addition, all of us have seen how corruption affects policy in our own tech space.
My main thought on the issue is simple enough.
I think quid pro quo corruption–like real corruption, the kind even Citizens United would ban–is pretty common. I do think it’s hard to stop. But we should accept facts. Maybe I’m wrong, but I’ll explain why I think it. Mainly it’s because of conversations I’ve had with staffers in DC, who would know best, but have little incentive to discuss this topic, and who also internalize some of DC’s customs.
Let me give some examples. And I give these examples as someone who hardly lobbied Congress–I sued companies before the FCC and advised FCC Commissioners. I hung out with congressional staffers largely socially, as friends, and I lobbied when I acted as the “legal expert” supporting a relationship lobbyist.
1. A young staffer who worked in DC, from about 2002 to 2008, once told me that quid pro quo corruption is common. Lobbyists often say, “We will hold a fundraiser [or two] for you, if you support this bill.” The staffer said it was rampant, common. After Abramoff, the staffer said, l0bbyists became slightly more subtle. This is hearsay, but hearsay I trusted. This was a close friend, with no reason to lie or exaggerate, who’d worked for several Congressmen.
2. Another congressional staffer showed me an email from a lobbyist for a company that spends a lot of money on lobbying, a very connected company. This company had stopped giving money to the staffer’s boss, a Congressman, because the boss had voted years earlier for a bill the company opposes. The lobbyist’s email explained that he hoped his company could give money to the Congressman again, but that he needed some evidence to show his company executives that the Congressman was worth supporting. So, if the Congressman would only support XYZ bill, then the lobbyist could show the executives that the Congressman was worth supporting… and start giving money again. Sounds like: “You support bill XYZ, we give you money.”
3. Notice, in example 2, that companies stop giving money when a Congressman opposes their bills. As another staffer told me, this notion is endemic. Congressmen and their staff–ever intent on raising money for the next election cycle–often decide which bills to introduce or support based on the fear that companies will stop giving them money. That is, staffers often say, “Oh no, if we introduce that bill [or cosponsor, etc.], then the credit card companies [or telecom, or oil, or coal] would get mad at us.” That is, quid pro quo is internalized. If you support the wrong bill, introduce the wrong ideas, you lose money. Corporations are giving now, and they’ll stop giving or they’ll oppose you and spend on your opponent. That’s what happens if you cross them. How is that not internalized quid pro quo–deciding bills based on whether or not the money keeps flowing.
4. In the news were a few examples, probably among many. Eleanor Holmes Norton left a “shocking” voice mail that probably didn’t shock DC, asking for funds. Maxine Waters suggested Comcast tried to bribe her for the Comcast-NBC merger.
I know these are a few examples, just anecdotal. But Congress has assembled far more examples, such as in the legislative history of the campaign finance legislation. I also know that many of my friends in DC have come to the same conclusion, and have become disillusioned. It’s depressing. And it helps explain why so many of our policies seem so incredibly biased towards the most powerful interests.
It also makes me skeptical of assumptions by judges and scholars–often meant out of what seems like apparent politeness–that most politicians are not corrupt. (They are probably good people, but they are in a corrupt system, full of implicit quid pro quo.)
Scholars often look for other explanations for why our system results in outcomes that seem corrupt–powerful enough explanations like public choice theory–as well as focusing on the problem of the mere “appearance” of corruption.
Despite the politeness, seventy percent of Americans think Congress is corrupt. They’re probably right. We might as well be honest about that .